False-flag operation on LOST: Treaty would compromise U.S. sovereignty, not enhance it

By
Frank J. Gaffney Jr.

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Here we go again: The usual suspects - the environmentalists, the one-worlder transnationalists, the Obama administration (to the extent that is not redundant) and assorted shortsighted special interests including, regrettably, the United States Navy - are dusting off the hopelessly outdated and inequitable United Nations Law of the Sea Treaty (better, and more accurately, known as LOST) in the hope of jamming its ratification through the Senate as was done two years ago with the defective New Start Treaty.

Amazingly, they are doing so under what intelligence professionals would dub a "false flag" operation - an initiative that presents itself as one thing, in this case the "American Sovereignty Campaign," when it is exactly the opposite. If ever there were an anti-sovereignty treaty it is LOST. It speaks volumes about the lengths to which this accord's proponents have to go to conceal the reality that they are masquerading as advocates of U.S. sovereignty, not what they really are: champions of an effort to greatly reduce it.

As it happens, the poster child of this bait-and-switch may be former-Sen.-turned-lobbyist Trent Lott. In October 2007, former Senate Majority Leader Lott actually circulated a letter to his colleagues urging that the Law of the Sea Treaty be withdrawn from consideration by what was once known as "the world's greatest deliberative body."

This letter warned: "To effect the treaty's broad regime of governance, we are particularly concerned that United States sovereignty could be subjugated in many areas to a supranational government that is chartered by the United Nations under the 1982 Convention. Further, we are troubled that compulsory dispute resolution could pertain to public and private activities including law enforcement, maritime security, business operations, and nonmilitary activities performed aboard military vessels."

Today, however, Mr. Lott represents Shell Oil. His job is to lobby his former colleagues not to sign a letter that has that exact same language in it, word for word. Is that because the treaty is no longer a threat to U.S. sovereignty at the hands of "a supranational government that is chartered by the United Nations under the 1982 Convention"? Or is it simply that Mr. Lott is now a gun for hire, willing, like the campaign he is helping advance, to do or say whatever it takes to get a seriously defective treaty ratified?

How defective is LOST? Consider the following illustrative examples of its fatal flaws:

First, as Mr. Lott once warned, ratification of LOST would commit the United States to submit to mandatory dispute resolution with respect to U.S. military and industrial operations. While LOST proponents argue that the United States will choose available arbitration mechanisms to avoid legal decisions from the International Court of Justice or the International Tribunal for the Law of the Sea, such arbitration panels are no less perilous for U.S. interests since the decisive "swing" arbiters would be appointed by generally unfriendly U.N.-affiliated bureaucrats. The arbitration panels can also be relied upon to look to rulings by those two bodies to inform their own decisions.

Furthermore, while there is a LOST provision exempting "military activity" from such dispute resolution mechanisms, the treaty makes no attempt to define "military activity," virtually guaranteeing that such matters will be litigated - in all likelihood to our detriment - before one or another of LOST's arbitration mechanisms. The rulings of such arbitrators cannot be appealed.

Subjecting our military to the risks of such mandatory dispute resolution is all the more imprudent given that LOST provides the Navy with no navigational rights and freedoms beyond those it already enjoys under customary international law and the U.S. Freedom of Navigation program. The Navy has successfully protected American interests on the seas for more than 200 years without the United States becoming a party to LOST - including during the 30 years since LOST was concluded, in 1982. There is no compelling reason to believe that record will be improved upon by entrusting the job to international legal arrangements.

Second, the Law of the Sea Treaty contains provisions that risk putting sensitive - and in some cases, militarily useful - information and technology in the hands of America's adversaries and its companies' commercial competitors. Claims by LOST's proponents that this problem was fixed by a 1994 agreement that was not signed by all of LOST's parties cry out for close examination by the Senate and the nation.

Third, the Law of the Sea Treaty entails commitments that have far-reaching implications for U.S. businesses, far beyond the possibility of mandatory technology transfers. These include: embroiling this country in treaties bearing on commercial activities to which it is not a party; wide-ranging, intrusive and expensive environmental obligations; creating standing for foreign nationals to pursue alien torts in our courts; and jeopardizing our rights under the World Trade Organization, which was established after 1994.

Of particular concern is the fact that LOST creates an international taxation regime. It does so by empowering the International Seabed Authority to tax Americans for the purposes of meeting its own administrative costs and of globally redistributing revenue derived from the exploitation of seabed resources.

It is a travesty to portray a treaty with such clearly sovereignty-sapping provisions as an enhancement to our national sovereignty. LOST should be rejected this time - as President Reagan did 30 years ago and as Mr. Lott urged 25 years later.

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